"Do or Do not. There is no try."

Supreme Court Justice Ruth Bader Ginsburg dipped her toe into the political waters last week, conceding to the Associated Press that she’d rather not “think about” the possibility of a Donald Trump presidency. “If it should be,” she added, “then everything is up for grabs.”

A couple of days later, Ginsburg went just a little further while speaking to the New York Times. Reflecting again on a possible Trump administration, the justice said, “For the country, it could be four years. For the court, it could be – I don’t even want to contemplate that.” Echoing a sentiment from her late husband, Ginsburg said a Trump victory in November would mean “it’s time for us to move to New Zealand.”

“He has no consistency about him,” Ginsburg told CNN. “He says whatever comes into his head at the moment. He really has an ego…. How has he gotten away with not turning over his tax returns? The press seems to be very gentle with him on that.”

It’s at this point that objective observers have to start wondering whether Ginsburg is going further than she should.

I realize, of course, that justices’ ideologies are not exactly a secret. The fact that Ruth Bader Ginsburg wants to see Donald J. Trump lose should surprise literally no one. It’s a safe bet that Clarence Thomas is equally eager to see Hillary Clinton lose. There’s no great mystery here.

But as much as I admire and respect Ginsburg, critics are raising a legitimate question. If I’m being honest, I probably wouldn’t be at all pleased if, say, Samuel Alito started giving a series of media interviews, playing the role of election pundit and intervening in the electoral process. If the question today is whether Ginsburg is breaking with judicial protocol, fairness dictates that the answer is yes.

Paul Butler, a former federal prosecutor and a Georgetown University Law professor, wrote a piece for the New York Times defending the progressive justice for speaking her mind.

Normally Supreme Court justices should refrain from commenting on partisan politics. But these are not normal times. The question is whether a Supreme Court justice – in this case, the second woman on the court, a civil rights icon and pioneering feminist – has an obligation to remain silent when the country is at risk of being ruled by a man who has repeatedly demonstrated that he is a sexist and racist demagogue. The answer must be no. […]

When despots have ascended to power in other regimes, one wonders how judges should have responded. Should they have adhered to a code of silence while their country went to hell? Not on the watch of the Notorious R.B.G. She understands that if Trump wins, the rule of law is at risk.

I can appreciate the argument. I even want to agree with it. If Trump is a unique threat to the American political system and a genuine menace, it’s unreasonable to think people of good conscience should stay silent in the name of propriety.

But Ginsburg isn’t just another voter; she’s a sitting justice on the Supreme Court. If there were a crisis along the lines of the 2000 election, and the high court was asked to adjudicate a case related to this election’s outcome, would Americans have confidence of Ginsburg’s impartiality? Would she have to recuse herself, thus affecting the outcome?

I appreciate the broader context and the fact that Ginsburg may be understandably worried about her own role in sending the nation in a radical and regressive direction. But the fact remains, those who’ve said she’s going too far are raising a legitimate concern that is not easily dismissed.

Conservative lawmakers have enacted a sweeping flurry of abortion restrictions at the state level, and justified their policies with a supposed concern for women’s health. It’s such an obvious cover that when the court asked Texas’ lawyers to justify their arguments with empirical data, they had precisely bupkis. The point of these laws is to prevent abortion, women’s health be hanged.

An analogous situation is developing with respect to voting rights, where conservative legislators have also enacted a sweeping set of state-level regulations making it harder to vote and justified them with obvious nonsense about voter fraud. And it’s ready to pay off this year, especially in local elections.

The problem with voter ID laws — the signature conservative vote suppression measure — is that it’s aimed at the most idiotic possible method of stealing an election. Even a small local election is usually decided by hundreds if not thousands of votes, so in order to steal one with fraudulent individual votes, you’d have to get hundreds or thousands of people to commit a very serious felony — with no guarantee that it will actually swing the election.

As any tinpot dictator could tell you, the way to steal an election is by manipulating the central election procedure. Instead of wrangling thousands of random schlubs, you fiddle with the registration lists or the assignation of ballots — or you prevent the enemy party from voting in the first place.

Given the GOP’s other vote suppression measures — like shortening early voting, eliminating night and weekend voting, making it harder to register to vote, and so on, all of which have nothing to do with fraud but disproportionately hit liberal constituencies — undermining Democratic turnout is the obvious motivation behind voter ID and similar policies.

It’s always been unclear whether conservatives were being consciously deceptive about their motives, or had merely convinced themselves of tactically convenient nonsense by constant repetition. But at least some of them were outright lying. Ari Berman at The Nation has the goods, in an extensive report about how GOP vote suppression is paying dividends in Wisconsin:

Schultz asked his colleagues to consider not whether the bill would help the GOP, but how it would impact the voting rights of Wisconsinites. Then-State Senator Glenn Grothman cut him off: “What I’m concerned about is winning. We better get this done while we have the opportunity.” (When asked during the state’s April 5 primary why Republicans would carry Wisconsin in 2016, Grothman, who had since been elected to the U.S. Congress, replied: “Now we have photo ID.”) In a federal voting-rights case, Allbaugh named two other GOP senators who were “giddy” and “politically frothing at the mouth” over the bill. [The Nation]

Make no mistake, this is tantamount to election theft. But since the Supreme Court gutted the Voting Rights Act in 2013, it is all probably legal, and even fairly above board given the number of Republicans who have been caught letting slip the bleeding obvious.

But legal or illegal, there is little difference between falsifying the results of an election and preventing the enemy party’s supporters from voting. Either way American citizens are deprived of their due right to the franchise. And while there is no general constitutional right to vote, given that African-Americans are the most reliable Democratic Party supporters, many of the vote suppression measures are racist in effect and probably in intention, and therefore arguably violations of the 15th Amendment.

None of this is particularly original. Republicans are the direct heirs to the Dixiecrat political tradition, and this batch of vote suppression is a weak echo of the methods by which African-Americans were prevented from voting in the Jim Crow South.

But until Congress can re-protect the franchise, the key question for the future will be whether the Supreme Court will revisit its previous view that the Voting Rights Act is largely outdated and unnecessary. Chief Justice John Roberts came to that view through a tremendous effort of willful ignorance — but subsequent events could not possibly have proved him wrong more decisively. The next time voting rights comes before the court, the need to defend the franchise will be difficult to ignore.

I can’t blame you if you’re thinking “no.” It won again this week, as everyone knew it would. But someday, this dam will break.

I admit that these last few days give us little basis for hope, but I do think Connecticut Senator Chris Murphy’s filibuster had some impact in forcing a vote, albeit an unsuccessful one. Majority Leader Mitch McConnell controls the calendar, decides what gets to the floor. He didn’t have to schedule these votes. Granted, his real motivation was undoubtedly to give that small number of Republican incumbents from purple or blue states a chance to cast a reasonable-seeming vote on guns.

But public pressure exists, and polling is through the roof on support for banning the purchase of guns by people on terror-watch and no-fly lists. Murphy’s stand galvanized gun-control forces.

After the Newtown shooting in December of 2012, it took five months for the Senate to hold a vote. This time it took a week. That may not seem like much, especially given that both efforts came to the same bleak end, but this is progress of a sort. These things take a long time.

It was mildly encouraging, too, to see some red-state Democrats vote for gun legislation sponsored by Dianne Feinstein. To NRA hard-liners, she is Satan. There are four red-state Democrats who risk political suicide if they’re not careful on guns: Joe Donnelly of Indiana, Heidi Heitkamp of North Dakota, Joe Manchin of West Virginia, and Jon Tester of Montana. All but Heitkamp voted for Feinstein’s amendment to prevent gun purchases by anyone who’s been on a terror watch list for the last five years.

It should be noted that only Donnelly voted for the other Democratic measure, introduced by Murphy and Chuck Schumer, which sought to close the gun-show loophole. And all four of these Democrats opposed a weak amendment from Republican Chuck Grassley.

But ultimately, yes, the votes were election-year theater. Here’s how ridiculous the whole thing is. Maine Republican Susan Collins has this “compromise” bill that would ban purchases of guns by people on the no-fly list. That’s to get Democratic support. Then it allows people to appeal such a decision, which is supposed to lure Republicans, who’ve said they don’t like the ban because some people have been incorrectly put on those lists.

You might think that that would mean that enough senators from both parties could vote yes. But as of Tuesday afternoon, a Senate source explained to me, no other Republican had yet signed on to Collins’s bill. A small number presumably would—Mark Kirk of Illinois, who’s facing a tough reelection fight in a very blue state, maybe a few others. But Collins would need 15 or 16 Republicans to back her to get the 60 votes needed to end cloture. That’s as close to impossible as anything can be.

Now it gets even more baroque: Despite this lack of Republican enthusiasm, Senate Majority Leader Mitch McConnell may well give Collins a vote anyway. McConnell, of course, has no personal interest in compromise on this issue. He’s NRA all the way.

However, he probably wants a vote for the sake of Kirk, New Hampshire’s Kelly Ayotte, Pennsylvania’s Pat Toomey, Wisconsin’s Ron Johnson—that is, all the Republicans up for reelection in blue states. It’ll look nice to voters back home that they cast a bipartisan gun vote.

But of course Democratic leader Harry Reid knows this, and so he might respond to such a move by McConnell by encouraging his caucus to vote against the Collins measure, thereby denying Kirk and the rest the desired bipartisan cover. Capische?

So the bill that is an actual compromise, the one bill on which both sides might actually have been able to agree, at least in theory, is the very bill that might lose by something like 95-5.

It’s not just ridiculous. It’s immoral. How high do the carcasses need to pile?

I sense we’re starting to reach the point where we’re going to learn the answer to that question. This just can’t go on forever. For starters, if Hillary Clinton maintains her lead and is elected president, one of the first things she’s going to do is put a liberal on the Supreme Court, making for a 5-4 liberal majority. Even if she settles for Merrick Garland, signs are he’d back gun control measures (the NRA already came out against him).

That could lead to an overturning of District of Columbia v. Heller, which vastly expanded individual gun-ownership rights. Given enough time, and maybe an Anthony Kennedy or a Clarence Thomas retirement and thus a 6-3 liberal majority, it could lead to still bigger changes in gun-law jurisprudence.

That would lead a defensive NRA to try to tighten its grip on Congress even more. And that will probably work, for a time. But it will embolden the anti-NRA forces too. Momentum will then be on their side.

And the mass killings will continue, and the bodies will pile up, and public outrage will grow. And one of these days, there’ll be a tragedy that will make everyone, even the number of Republicans who’d be needed to break a filibuster, say “enough.” It would have to be just the right kind of thing, click all the demographic boxes just right—a white man who bought an assault weapon with no background check and went on a rampage and killed many white people in a heavily Republican part of the country. I’m not wishing this on anyone, but then, I don’t need to. As we continue to do nothing, the odds increase daily that it will happen.

Things look awful until, one day, they suddenly don’t. The day Rosa Parks sat down on that bus, I bet not that many people would have predicted that a president would sign a civil rights bill just nine years later. The evil that is the NRA is so thoroughgoing and so repulsive to most Americans that it just can’t last forever. Newtown and Orlando energized millions of people. The LGBT community, I gather, is going to embrace gun-control as an issue. They’re organized, and they have money and clout. The old saying that pro-gun people vote on that issue while anti-gun people don’t isn’t as true as it once was.

So be angry about what happened. But Wayne LaPierre’s day will come, and maybe sooner than we think. And what a day it will be.

The Supreme Court tends to expend more energy detangling questions of law than it does sorting through questions of fact. But on May 23rd, in a decision that could spare the life of a death-row inmate in Georgia, the justices took a microscope to the jury selection process in the trial of Timothy Tyrone Foster, a black man sentenced to die by an all-white jury in 1987 for murdering an elderly woman a year earlier. After examining evidence that emerged in 2006, the justices decided, by a 7-1 vote, that prosecutors were illicitly motivated by racial bias when they struck two blacks from Mr Foster’s jury pool. Justice Clarence Thomas, the lone dissenter, wrote that there were “credible” non-racist reasons for dismissing them from the list of potential jurors; his colleagues’ dive into a three-decade-old trial, Justice Thomas charged, was “flabbergasting”.

In his majority opinion in Foster v Chatman, Chief Justice John Roberts methodically marched through rather damning evidence that the men prosecuting Mr Foster were hell-bent on keeping black people off the jury. The prosecutors’ notes during voir dire (jury selection) showed certain names highlighted in green, a colour that, the legend helpfully explains, “represents blacks”. The prospective black jurors were labelled “B#1”, “B#2” and “B#3” with capital letter “N” (meaning “no”) written next to each. All of the prospective jurors were asked to fill out a questionnaire including a question about their race; on the black individuals’ answer sheets, prosecutors drew attention to their race by circling the answer. And one of the lawyers scribbled out this sentiment: “If it comes down to having to pick one of the black jurors, [this one] might be okay”.

All of this, Mr Foster’s lawyer said at the November oral argument, adds up to “an arsenal of smoking guns” that race was at the forefront of the prosecutors’ minds. Such bias, the Supreme Court decided in Batson v Kentucky, a ruling that came down a year before Mr Foster’s trial, is impermissible during jury selection. When eliminating potential jurors via peremptory challenges (as opposed to challenges “for cause”), lawyers can be called upon to present a race-neutral explanation for their strikes. Mr Roberts wrote that the Georgia Supreme Court had “clearly erred” when it determined that racial considerations played no part in the selection of the jury. The host of reasons cited for nixing the black jurors—too young to care about a 79-year-old victim, too (apparently) bored, too shifty-eyed, too biased by relatives who were social workers—were not persuasive, as they applied just as readily to several non-black prospective jurors who were not challenged. These justifications, the court held, were mere pretext. Add to this “the shifting explanations, the misrepresentations of the record and the persistent focus on race in the prosecution’s file” and the justices are “left with the firm conviction that the strikes…were motivated in substantial part by discriminatory intent”.

Very late in the game, and in the face of all those smoking guns, Georgia tried to defend the apparently racist strikes with a brazenly duplicitous mind-game defence. The prosecutors were keenly aware that they would be held to a higher standard since Batson had been decided just a year earlier. They called such flamboyant attention to the race of the prospective jurors only so they could keep track of the black jurors in the event they were called upon to supply a race-neutral reason for their dismissal. This argument, Mr Roberts wrote, “falls flat” and “reeks of afterthought”, since it had not been made “in the nearly 30-year history of this litigation: not in the trial court, not in the state habeas court, and not even in the state’s brief in opposition to Foster’s petition for certiorari”. All the lights and whistles flagging the individuals’ race, he wrote, “plainly demonstrates a concerted effort to keep black prospective jurors off the jury.”

That the sole African American member of the Supreme Court bench saw the case so differently is less surprising than it might seem. In recent rulings, Justice Thomas has found himself increasingly alienated from his seven colleagues. Three times in the past two weeks, he has cast a lonely dissenting vote from an otherwise unanimous decision. But the implications of his colleagues’ ruling in Foster v Chatman remain to be seen. Mr Foster can ask for a new sentencing trial, but he has no guarantee another jury will be more lenient. And it’s unclear how much of a constraint Foster will be moving forward. Prosecutors are on notice that incriminating notations during jury selection are a very bad idea. That may lead, on the margins, to less racial discrimination in the criminal justice system—but it will do little to curtail subtler methods of jury manipulation.

The Oklahoma Senate on Thursday sent Gov. Mary Fallin a bill that would make it a felony to perform abortions in Oklahoma, despite a federal court case legalizing it.

Senate Bill 1552, by Sen. Nathan Dahm, R-Broken Arrow, would also allow the revocation of medical licenses for physicians who perform abortions. The measure passed by a vote of 33-12 with no debate.

The article added that there’s one physician in the state Senate, Republican Ervin Yen, who characterized the legislation as an “insane” measure that would invariably face a court challenge.

Of course, it will first have to be signed into law by Oklahoma Gov. Mary Fallin (R), who recently received some good advice from the editorial board of the New York Times: “For years, anti-abortion forces have relied on onerous regulations on providers to limit abortion services and lied about their true purpose because they know that a vast majority of Americans support a woman’s right to choose and that the Supreme Court has affirmed that right for more than four decades. Governor Fallin would save everyone the time and expense of litigation by vetoing the bill.”

Keep in mind, by approving a policy that’s obviously unconstitutional, and which is certain to fail in the courts, state lawmakers are asking Oklahoma taxpayers to foot the bill for a political exercise that will serve no practical or policy purpose.

But just below the surface, there’s another nagging question: don’t policymakers in Oklahoma have real work to do? Why invest time and resources in a culture-war bill that will inevitably be struck down?

During a debate in the state House over the anti-abortion proposal, state Rep. David Brumbaugh (R) told his colleagues, “Everybody talks about [Oklahoma’s] $1.3 billion deficit. If we take care of the morality, God will take care of the economy.”

This, evidently, was the prevailing attitude, which is why Oklahoma will soon have an unconstitutional ban on doctors performing a legal medical procedure, but won’t have a balanced budget.